New Canadian responsible journalism defamation defence
December 23, 2009
The Canadian Supreme Court has followed most of the rest of the common law world in developing a privilege to publish information in the public interest, providing the publication was “responsible”. Both are elements for the defence to prove. It’s broadly similar to the UK defence in Reynolds – so it’s wider than the current versions of the defence in NZ and Australia.
What’s “responsible journalism”? The SC has set out a series of factors closely resembling Lord Nicholls’ ten factors from Reynolds. Here’s a summary from the headnote:
The judge determines whether the impugned statement relates to a matter of public interest. If public interest is shown, the jury decides whether on the evidence the defence of responsible communication is established. The following factors may aid in determining whether a defamatory communication on a matter of public interest was responsibly made: (a) the seriousness of the allegation; (b) the public importance of the matter; (c) the urgency of the matter; (d) the status and reliability of the source; (e) whether the plaintiff’s side of the story was sought and accurately reported; (f) whether the inclusion of the defamatory statement was justifiable; (g) whether the defamatory statement’s public interest lay in the fact that it was made rather than its truth (“reportage”); and (h) any other relevant circumstances.
Note that they’ve snuck in some a version of neutral reportage – see factor (g) and also paras [119] and [120]. It remains to be seen whether this will require categorisation of articles as reportage or investigative, which has been the suggestion in the UK, where Reynolds applies to investigative journalism, and neutral reportage to non-investigative accounts of important public disputes. Perhaps the Canadian approach is more flexible, and asks more simply whether the degree of care exercised was appropriate in the circumstances…
See also the Cusson case, also hot off the press and to similar effect.
Topics: Defamation, NZ Bill of Rights Act | 47 Comments »
TVNZ upholds Paul Henry complaint
December 21, 2009
TVNZ’s complaints committee has found that Paul Henry breached the taste and decency standard with his comments on Susan Boyle on Breakfast last month. He giggled when reporting that she had been starved of oxygen at birth and said she was “retarded” and you could see it from her photograph. It’s worse when you see it.
This was probably a savvy move by TVNZ, as the BSA very probably would have decided the same thing.
I have to say, the thing I found most offensive was the say he cracked up all the way through the item, all the while protesting, entirely disingenuously, that it wasn’t funny.
A couple of issues remain though: whether the action taken by TVNZ after upholding the complaint (and it’s not clear from this report that they’ve taken any) was sufficient. And whether TVNZ may also have breached standards of fairness (I’m assuming at least one person complained under that ground). The BSA may yet have to consider this complaint.
Topics: Broadcasting Standards Authority | No Comments »
“Comedian” child sex accused name suppression
December 21, 2009
It seems that a “comedian” has been granted name suppression in connection with charges that he has had unlawful sexual connection with a child under 12, his daughter.
This isn’t some namby-pamby judge covering up for a celebrity. This suppression kicks in automatically under the Criminal Justice Act, I think. Alleged sex crime victims are given name suppression under section 139. This is a rule set by Parliament, not a discretion exercised by a judge. It operates to suppress reporting of the name of the daughter – and any identifying details. That’ll include the name of her dad (because it identifies the daughter).
Free speech absolutists looking to circumvent this suppression might like to think about who they might be hurting here.
And we might not want to be too quick to rush to judgment. I have no insider knowledge, but this account provides some reasons to think the case against him may not be straightforward.
We might also spare a thought for NZ comedians out there. It’s a fairly small circle. Michelle A’Court is on the record saying that the defendant isn’t really a comedian.
Finally, 3 News and RadioLive might like to think twice about their report accusing Carolyn Meng Yee of breaching the suppression by telling Te Radar the suppressed name when seeking his comment.
First, it’s not clear from the story who exactly is doing the accusing. Te Radar doesn’t seem to be doing any actual accusing. It seems to be TV3/RadioLive itself.
Second, it’s not clearly an offence to tell someone a suppressed name. The offence is triggered by publishing suppressed material (or evading a suppression order). I’m not aware of any cases suggesting that this can be triggered by telling one other person.
Thirdly – how to put this? If I were a betting man, I’d lay good odds that there are journalists at TV3 and Radio Live who have told happily passed on suppressed names to friends and colleagues. One would hope they might find the saddle a bit uncomfortable on that high horse.
Topics: Media ethics, Name suppression | 46 Comments »
Twittering in the courtroom
December 12, 2009
It’s been allowed in the US and Australia, with an Australian judge saying:
I believe that the public has a legitimate right to be fully informed of proceedings, particularly proceedings such as (the iiNet case), which have attracted considerable public interest. Twittering can serve to inform the public in a more speedy and comprehensive manner than may be possible through traditional media coverage.
It’s up to the judges case-by-case, as it should be. Frankly, I’m a bit skeptical about how well served the public will really be by twitter updates. But sometimes I feel a bit the same about media reports of trials and hearings.
Now, how about removing the ridiculous (and non-BORA compliant) rule that people taking notes in the public gallery may be committing contempt unless they get the judge’s approval?
Topics: Contempt of Court, Internet issues, NZ Bill of Rights Act | 48 Comments »
Down, Tiger!
December 12, 2009
Tiger Woods has obtained an injunction against the publication of some private details in the UK. Media lawyer Mark Stephens suggests that it concerns information that’s being freely reported in the US.
If that’s so, the injunction seems futile, and therefore legally unjustifiable.
It also seems strategically dopey. It can only serve to achieve something I had thought impossible: to increase the degree of interest in Woods’ affairs.
It also seems inconsistent with Justice Eady’s decision when Max Mosley sought an injunction against the continuing publications of the sex orgy videos. Justice Eady held that these were already too widely available to justify an injunction. (This makes me wonder whether the injunction actually concerns details that aren’t yet widely available. Or it may be an interim injunction, pending a more fulsome argument in the near future).
Whatever the case, it seems ill-advised. Still, it’s a nice Christmas present for the British media’s campaign to reform the UK’s libel laws, which have already received recent fillips from Index on Censorship, Justice secretary Jack Straw, and Lord Lester.
UPDATE: The injunction (in favour of one “Eldrick Tont Woods”) is here. It relates to images of Woods naked or having sex. I don’t think any such images are yet freely available. In fact, Woods’ lawyers don’t accept that any such photos necessarily exist, and express concern that any that surface may be faked.
It’s not a “super-injunction” so the fact of the injunction is allowed to be discussed. It is a John Doe order, against unspecified defendants. It provides for anyone served with a copy to apply to the court to vary it on 2 days’ notice. Obviously, it only applies in the UK.
Topics: Injunctions, Privacy tort | No Comments »
Good front page lead for tomorrow’s Sunday Star-Times
December 12, 2009
The “high profile businesswoman” who featured in last week’s SST front-page lead because she received interim name suppression on charges of supplying drugs to her dying ex-husband, has now been named. From this report, it seems that her lawyers did not even see fit to contest it further, and the suppression just lapsed.
She’s Colleen Sylvia Hart, director of a swimwear company, and a former beauty queen. Might we be forgiven for wondering whether the latter fact might have had some bearing on the prominence attached to the story? Because it really didn’t tell us anything interesting about name suppression.
Suggested headline: Name suppression shock: laws not so bad after all.
This new development does seem to confirm an interesting comment by Fairfax’s Clive Lind at last week’s R v the Internet seminar: that when the media are writing name suppression stories, they sometimes sidle around the real reason the person is famous, instead describing him or her in other ways. They are trying not to be seen as evading the suppression. That’s canny, but I’m not sure it really worked in this case: she was identified as having an ex-husband who died of cancer earlier this year.
Topics: Name suppression | No Comments »
OIA FYI
December 9, 2009
Speaking of the Law Commission, they’re seeking your views on whether we should be changing our official information laws. Online survey here. You’ll have to be in quickly though: they want the feedback by January [Update: new deadline is 15 February].
Topics: Official Information Act | 48 Comments »
Contempt announcement looming
December 9, 2009
At the R v the Internet conference last week Attorney-General Chris Finlayson said there’s a government announcement on the law of contempt looming. A reference to the Law Commission perhaps?
Topics: Contempt of Court | No Comments »
Perhaps he was deprived of oxygen at birth
November 30, 2009
Here’s the really interesting thing about Stuff’s story about Paul Henry’s comments on Susan Boyle. They’re using a photo that makes Henry appear a bit retarded himself.
If you look at him carefully, you can make it out.
Topics: Media ethics | 3 Comments »
There can be only one…
November 29, 2009
Britain is toying with abolishing the so-called “multiple publication rule” for defamation, and switching to a US-style “single publication rule”. Under the multiple publication rule, every different publication (ie newspaper copy sold, internet post downloaded, etc) is a separate publication and can be sued upon. This is particularly a problem for online archives, which effectively become new publications when someone accesses them, perhaps years after the original date of publication. What’s that you say? The limitation period will have expired? No, it’s a fresh publication, so the clock starts again. That’s the rule here at the moment too.
The Ministry of Justice there has published a discussion paper considering the pros and cons and inviting submissions. The single publication rule is actually more complicated than it sounds. When will a slightly modified publication, or one in a different format, be a “new” publication attracting liability? What happens if the person defamed doesn’t find out about it until after the limitation period expires?
The Ministry considers a range of possible reforms. I’m attracted to their minimal solutions: a qualified privilege for online archives, unless the publisher refuses or neglects to update the electronic version, on request, with a correction or reasonable letter of rebuttal. Publishers should also be obliged to flag any archive subject to a defamation claim so that users learn about it.
Topics: Defamation | No Comments »
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